Citation Nr: 0533310
Decision Date: 12/08/05 Archive Date: 12/30/05
DOCKET NO. 02-17 319 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
Entitlement to service connection for bilateral hearing loss.
Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Elizabeth Spaur, Counsel
INTRODUCTION
The veteran had active service from February 1976 to
September 1976.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2002 decision by the Department
of Veterans Affairs (VA) Waco, Texas, Regional Office (RO).
That decision denied entitlement to service connection for
bilateral hearing loss and tinnitus. The October 2002
statement of the case noted that the issues were actually
entitlement to service connection for tinnitus and whether
new and material evidence had been presented to reopen a
claim for entitlement to service connection for bilateral
hearing loss.
A July 2004 Board decision found that new and material
evidence had been presented to reopen a claim for entitlement
to service connection for bilateral hearing loss. The Board
remanded the claims for entitlement to service connection for
bilateral hearing loss and tinnitus to the RO for further
development. Such development was completed and the claims
are again before the Board.
FINDINGS OF FACT
1. All evidence necessary for review of the issues on appeal
has been obtained, and the VA has satisfied the duty to
notify the veteran of the law and regulations applicable to
the claims, the evidence necessary to substantiate the
claims, and what evidence was to be provided by the veteran
and what evidence the VA would attempt to obtain on his
behalf.
2. The veteran has hearing loss of greater than 40 decibels
in all frequencies bilaterally.
3. The evidence of record does not reasonably show that
bilateral sensorineural hearing loss had its origins during
service or was worsened beyond the natural progression of his
disorder because of service.
4. The evidence of record does not reasonably show that the
veteran has a current diagnosis of tinnitus.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was not incurred in or aggravated
by service, and bilateral sensorineural hearing loss may not
be presumed to have been incurred in service. 38 U.S.C.A.
§§ 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309,
3.385 (2005).
2. Tinnitus was not incurred in or aggravated by service.
38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Assist
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000). The Act is applicable to all
claims filed on or after the date of enactment, November 9,
2000, or filed before the date of enactment and not yet final
as of that date. The new law eliminates the concept of a
well-grounded claim, and redefines the obligations of the VA
with respect to the duty to assist claimants in the
development of their claims. First, the VA has a duty to
notify the appellant and representative, if represented, of
any information and evidence needed to substantiate and
complete a claim. 38 U.S.C.A. §§ 5102 and 5103 (West 2002 &
Supp. 2005). Second, the VA has a duty to assist the
appellant in obtaining evidence necessary to substantiate the
claim. 38 U.S.C.A. § 5103A (West 2002).
The VA has promulgated revised regulations to implement these
changes in the law. See 66 Fed. Reg. 45,620 (Aug. 29, 2001)
(codified as amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159
and 3.326(a) (2005)). The intended effect of the new
regulations is to establish clear guidelines consistent with
the intent of Congress regarding the timing and the scope of
assistance VA will provide to a claimant who files a
substantially complete application for VA benefits, or who
attempts to reopen a previously denied claim.
The Board finds that the VA's duties under the law and
recently revised implementing regulations have been
fulfilled. The veteran was provided adequate notice as to
the evidence needed to substantiate his claims. The Board
concludes the discussions in the rating decision, the
statement of the case (SOC), the supplemental statement of
the case (SSOC), and letters sent to the veteran informed him
of the information and evidence needed to substantiate the
claims and complied with the VA's notification requirements.
The SOC and SSOC considered the merits of the substantive
issues. The communications, such as a letter from the RO
dated in January 2002, provided the veteran with an
explanation of what evidence was to be provided by the
veteran and what evidence the VA would attempt to obtain on
his behalf. See generally Quartuccio v. Principi, 16 Vet.
App. 183 (2002). The SOC and SSOC advised him of the
evidence that had been obtained and considered. The RO also
supplied the veteran with the applicable regulations in the
SOC and SSOCs. The basic elements for establishing the
claims have remained unchanged despite the change in the law
with respect to duty to assist and notification requirements.
The VA has no outstanding duty to inform the veteran that any
additional information or evidence is needed.
The Board also finds that all relevant facts have been
properly developed, and that all evidence necessary for
equitable resolution of the issues on appeal has been
obtained. A review of the file shows that the RO made
appropriate efforts to attempt to obtain all relevant
evidence. The evidence includes the veteran's service
medical records and post service treatment records. The
veteran was afforded a VA examination. He has declined a
hearing. The Board does not know of any additional relevant
evidence which is available that has not been obtained. For
the foregoing reasons, the Board concludes that all
reasonable efforts were made by the VA to obtain evidence
necessary to substantiate the claims. The Board finds that
the evidence of record provides sufficient information to
adequately evaluate the claims. Therefore, no further
assistance to the veteran with the development of evidence is
required.
The Board notes that in Mayfield v. Nicholson, No. 02-1077
(U.S. Vet. App. April 14, 2005), the Court noted, citing
Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini
II), that a VCAA notice must be provided to a claimant before
the initial unfavorable [agency of original jurisdiction
(AOJ)] decision on a service-connection claim. A VCAA notice
was provided to the veteran before the RO decision regarding
the claim for benefits.
Additionally, in the Pelegrini decision, the Court also held,
in part, that a VCAA notice consistent with 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the
claimant about the information and evidence not of record
that is necessary to substantiate the claim; (2) inform the
claimant about the information and evidence that VA will seek
to provide; (3) inform the claimant about the information and
evidence the claimant is expected to provide; and (4) request
or tell the claimant to provide any evidence in the
claimant's possession that pertains to the claim, or
something to the effect that the claimant should "give us
everything you've got pertaining to your claim(s)." This new
"fourth element" of the notice requirement comes from the
language of 38 C.F.R. § 3.159(b)(1).
In this case, although the VCAA notice letter that was
provided to the veteran does not contain the "fourth
element," the Board finds that the veteran was otherwise
fully notified of the need to give to VA any evidence
pertaining to his claim. By various informational letters,
an SOC and the SSOC, and their accompanying notice letters,
the AOJ satisfied the fourth element of the notice
requirements.
In the circumstances of this case, another remand to have the
RO take additional action under the VCAA and the new
implementing regulations would serve no useful purpose. See
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict
adherence to requirements in the law does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case; such
adherence would result in unnecessarily imposing additional
burdens on the VA with no benefit flowing to the veteran);
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which
would only result in unnecessarily imposing additional
burdens on the VA with no benefit flowing to the veteran are
to be avoided). The VA has satisfied its obligation to
notify and assist the claimant in this case. Further
development and further expending of the VA's resources are
not warranted. Taking these factors into consideration,
there is no prejudice to the claimant in proceeding to
consider the claim on the merits. See Bernard v. Brown, 4
Vet. App. 384, 394 (1993).
II. Factual Background
Service medical records indicate that, on the February 1976
entrance examination report, puretone thresholds were as
follows:
The examination report noted defective hearing in the right
ear. The service medical records do not contain a separation
examination report.
An August 1976 report of medical history indicated that the
veteran stated he had not been treated for a condition
involving his ears during service. On a September 1976
statement of medical condition the veteran reported that
there had been no change in his medical condition since
August 1976.
A May 1991 private treatment note indicated that the veteran
had mild to moderate sensorineural hearing loss bilaterally.
Speech discrimination scores were 88 percent in the right ear
and 80 percent in the left ear. Puretone thresholds were as
follows:
A May 1989 audiology examination report, conducted by the
veteran's employer, noted puretone thresholds were as
follows:
An April 1990 audiology examination report, conducted by the
veteran's employer, noted puretone thresholds were as
follows:
An April 1992 audiology examination report, conducted by the
veteran's employer, noted puretone thresholds were as
follows:
An April 1995 memo regarding the veteran's employment, it was
noted that the veteran was evaluated in April 1995 and had
moderately severe sensorineural hearing loss in both ears.
It was noted that the veteran's job exposed him to high
intensity noise constantly. It was recommended that the
veteran be removed from this "noise hazardous work
immediately."
A July 1995 private audiology report noted puretone
thresholds were as follows:
An August 1995 private treatment note stated that the
veteran's hearing loss was probably late onset congenital
hearing loss.
A March 2000 hearing evaluation report stated that the
veteran reported that he first noticed his hearing problem in
1975. He indicated that his hearing loss had happened
slowly. He also noted that his uncles, mother and sister all
had experienced hearing loss. The veteran stated that his
hearing loss might be congenital.
An August 2004 VA examination report noted that the examiner
had reviewed the veteran's claims folder. The veteran
complained of occasional buzzing in both ears, about twice
yearly. Puretone thresholds were as follows:
The examiner noted that the veteran had severe sensorineural
hearing loss in the right ear and moderately severe
sensorineural hearing loss in the left ear. No diagnosis of
tinnitus was made. The examiner stated that "a multitude of
factors may have contributed to hearing loss progression from
induction physical in February 1976 to pre-employment
physical in June 1989 and there is no discharge audiogram to
document progression during service." It was noted that in
1995 an otolaryngologist stated that the veteran's hearing
loss was probably late onset congenital hearing loss. The
audiologist noted that, with the veteran's brief period of
service and no specific incidents of acoustic trauma noted,
"it is less likely than not hearing loss was due to military
noise exposure." She did note "a slight possibility exists
that hearing loss was aggravated by military noise
exposure."
III. Criteria
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1131. If an organic neurological disorder,
including sensorineural hearing loss, is manifest to a
compensable degree within one year after separation from
service, the disorder may be presumed to have been incurred
in service. See 38 U.S.C.A. § 1133; 38 C.F.R. §§ 3.307,
3.309. Service connection may be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2005).
If a hearing loss is incurred while in service, it will be
considered a disability for which service connection may be
granted if the auditory threshold in any of the frequencies
500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater;
the auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, 4000 Hertz is 26 decibels or greater;
or the speech recognition scores using the Maryland CNC Test
are less than 94 percent. 38 C.F.R. § 3.385.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
IV. Analysis
The United States Court of Appeals for Veterans Claims
(Court) has held that in order to establish service
connection, there must be evidence of both a service-
connected disease or injury and a present disability which is
attributable to such disease or injury. See Rabideau v.
Derwinski, 2 Vet. App. 141, 143 (1992).
The Court has also held that generally, to prove service
connection, a claimant must submit (1) medical evidence of a
current disability, (2) medical evidence, or in certain
circumstances lay testimony, of in-service incurrence or
aggravation of an injury or disease, and (3) medical evidence
of a nexus between the current disability and the in-service
disease or injury. See Pond v. West, 12 Vet. App. 341, 346
(1999); see also Rose v. West, 11 Vet. App. 169, 171 (1998).
The Board finds that it is clear from the evidence of record
that the veteran has a competent medical diagnosis of
bilateral hearing loss. See Gilpin v. West, 155 F.3d 1353
(Fed. Cir. 1998) (holding VA's interpretation of the
provisions of 38 U.S.C.A. § 1110 to require evidence of a
present disability to be consistent with congressional
intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the
law limits entitlement for service-related diseases and
injuries to cases where the underlying in-service incident
resulted in a disability).
The veteran currently has a level of hearing loss that is
considered a disability for VA compensation purposes. His
auditory threshold is greater than 40 decibels in multiple
frequencies bilaterally. See 38 C.F.R. § 3.385.
The question of whether the veteran's current diagnosis had
its onset in or is otherwise related to active service,
involves competent medical evidence as to medical causation.
Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). The Board
notes that an August 1995 private treatment note offered the
opinion that the veteran's hearing loss was probably late
onset congenital hearing loss. The August 2004 VA examiner
concurred with that and noted that it was "less likely than
not" that the veteran's hearing loss was incurred in
service. Congenital or developmental defects are not
diseases or injuries within the meaning of the applicable
legislation. 3.303(c) (1999). However, under certain
circumstances, service connection may be granted on the basis
of aggravation. See Thompson v. United States, 405 F.2d 1239
(Ct.Cl. 1969); Monroe v. Brown, 4 Vet. App. 513 (1993). The
VA General Counsel has held that service connection may be
granted for diseases, but not defects, of congenital,
developmental or familial origin. When a congenital or
developmental defect is subject to superimposed disease or
injury, service connection may be warranted for the resultant
disability. VAOPGCPREC 82-90.
The examiner did not that there was "a slight possibility
exists that hearing loss was aggravated by military noise
exposure." However, such language does not indicate that
the veteran's hearing loss was more likely than not
aggravated by service. Rather it indicates that opposite in
that less likely that the veteran's brief period of active
service aggravated his hearing loss. Accordingly, service
connection for bilateral hearing loss is denied.
With regard to the veteran's complaints of tinnitus, the
Board notes that such complaints are reflected in the August
2004 VA examination report. However, the veteran referred to
complaints of buzzing in his ears twice a year. The examiner
did not make a diagnosis of tinnitus. Other clinical
evidence of record is silent with regard to complaints,
findings or a diagnosis of tinnitus. In the absence of a
current diagnosis, service connection for tinnitus is denied.
ORDER
Entitlement to service connection for bilateral hearing loss
is denied.
Entitlement to service connection for tinnitus is denied.
____________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs